Yelp Wins Another Section 230 Case–Kimzey v. Yelp

This is such an easy case, it could have only been brought pro se. The suit involves two Yelp reviews by a user named “Sarah K.” that were allegedly defamatory and otherwise tortious. The court’s substantive discussion (some citations omitted):

Here, plaintiff alleges that Yelp is “a nationwide Internet business directory and business reliability rating and review service.” Plaintiff also alleges that Yelp asks multiple choice questions for a reviewer to click on the number of stars, and that Yelp designed and created the star image and color, which is the rating system. Based on these allegations, the court finds that Yelp qualifies as an “interactive computer service” within the meaning of the CDA. Plaintiff also makes conclusory allegations that Yelp created and developed the libelous promotion, and caused that statement to appear on Google. The court need not take conclusory allegations that are unsupported by plausible factual allegations as true. Rather, the Yelp review itself makes clear that the individual who “created and developed” the review is a user named “Sarah K.” Thus, “Sarah K” is the information content provider of the reviews, not Yelp. Nevertheless, plaintiff alleges that Yelp designed and created the star rating system. However, “[t]he mere fact that an interactive computer service ‘classifies user characteristics does not transform [it] into a ‘developer’ of the underlying misinformation.” Fair Housing Council, 521 F.3d at 1172 (quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003)). Indeed, Yelp’s star rating program is similar to eBay’s color-coded star rating system that the Ninth Circuit analogized in holding that classifying user characteristics into discrete categories and collecting responses to specific essay questions does not transform an interactive computer service into a developer of the underlying misinformation. Carafano, 339 F.3d at 1124 (citing Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 717-18 (Cal. App. 2002)).

Wow, we don’t see arguments too often any more about the Section 230 implications of star ratings. As the court notes, that argument first failed in the Gentry ruling in 2002!

Fortunately for the plaintiff, the court sidestepped Yelp’s anti-SLAPP motion. If the court had granted the motion (as I think it should have), the plaintiff should be writing a check for Yelp’s attorneys’ fees PLUS a $10,000 mandatory penalty under Washington’s anti-SLAPP statute. Still, I trust Yelp isn’t complaining about its decisive and fairly quick ruling.

Case citation: Kimzey v. Yelp Inc., 2014 WL 1805551 (W.D. Wash. May 7, 2014). The complaint. Note: Venkat represented Yelp in this case, but he didn’t have any role in drafting this blog post.

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With all due respect for your work, you seem to have spent your legal career
defending the 1996 Internet law that has long been obsolete, “CDA 230”.
A written law may indeed become obsolete when the object to which it was intended to apply, or the occasion for which it was enacted, no longer exists. “It must be a very strong case,” says Chief Justice Tilghman, “to justify the court in deciding, that an act standing on the statute book, unrepealed, is obsolete and invalid. I will not say that such case may not exist where there has been a non-use for a great number of years where, from a change of times and manners, an ancient sleeping statute would do great mischief if suddenly brought into action where a long, practice inconsistent with it has prevailed and, specially, where from other and latter statutes it might be inferred that in the apprehension of the legislature, the old one was not in force.”

Yelp has ruined Redmond Locksmith’s business with libel per se that it has posted on Google. The Google libel per se stands on its own.
The content that has been posted on Google, Bing and Yahoo by Yelp
1. Does not contain any reference to a “Sarah K”.
2. The content Yelp has posted says “Yelp review”, and “Yelp” in colored lettering.
3.. Two “reviews” have been altered by adding the Plaintiffs phone number.
4. The One Star rating image is a completely different star design image than on Yelp.
5. Yelp sends the content to Google by adding Google tags to the source code.
6. Yelp attorneys made a false statement of material fact, that Google “indexes” the content.
7. Yelp attorneys improperly submitted the Yelp.com “Sarah K” exhibit to the court, by inserting it in the motion.
8. Plaintiff’s Exhibits: 1-14 clearly show that Yelp sells five star reviews and posts

libelous statements and one star reviews on businesses that don’t pay for “advertising”
9. Their is now over 2,100 complaints to the FTC against Yelp for Libel and Extortion, by small business owners nationwide.
See: Yelp Complaints – National Association of Women in Business Owners, NAWBO.
10. Yelp can only profit this way in the USA using the “CDA 230” as defense.
11. Yelp’s stock dropped 50% when investors learned of the complaints (last month).
12. Yelp acquires more than 50% of its traffic from these Google shock value ratings.
13. “Sarah K” is actually Mr. Boten Sason, an internet spammer see “Google search”
14. Libel Per Se and Extortion used to be serious crimes, which you completely ignore.
15. Congratulations Yelp on the big “win” against a locksmith with no legal experience.
16. Also note Levitt v. Yelp Inc. (appeal 2013).
16. Plaintiff plans an appeal.

1. The obsolete 1996 Internet law known as the –
Communications Decency Act Section 230c.1. – [CDA Sec. 230] is still in effect and
protects libel defamation and false speech on the Internet.
Yelp prevailed.
The false speech remains, protected.
[The controversial ‘CDA Sec. 230’ was passed by congress in 1996 to help
the newly created Internet flourish unencumbered by lawsuits, and is still in effect
mainly due to the support it gets from the electronic frontier organization which spent
$5.5 million in 2015 on lobbying and expenses.]

Sept 2013 I filed the lawsuit Kimzey v. Yelp Inc. against Yelp for publishing a phony review and phony one star rating (about our business) next to our paid adverting on Google, the libelous speech first appeared Sept. 2011 and still appears 5 years later.
The phony one star rating negated our paid advertising which caused a huge loss of business.
Before filing the lawsuit I sent a certified letter to Yelp’s legal department regarding the false/libelous content. The only response was numerous calls from Yelp’s sales persons stating that Yelp is immune from lawsuits under the ‘CDA 230’ for false speech and then suggesting I purchase ‘advertising’ for $300.00 per month.
I consulted numerous attorneys to determine what options or possible remedies I had, the consulting fees exceeded $800.00 and the lowest bid to begin a federal civil lawsuit was a $25,000.00 retainer fee.
All of the information needed to write the case can be found on the Internet,
(a law reference library is no longer needed) so I proceeded to write my own case.
Yelp immediately filed a counter lawsuit (anti-SLAPP).
Three years later on Oct.12th 2016 the Federal Court of Appeals for the 9th Circuit San Francisco made a ruling on the case, the PDF document appears in the news article that follows.
The case affects thousands of business owners nationwide that are having the same
problem – phony one star ratings and false reviews
of businesses that refuse to buy ‘advertising’.
Much of the attention given to this case focuses on a phony ‘review’ supposedly written by a person using the alias ‘Sarah K’ with a fake photo, and phony Yelp friends account, that was posted on Yelp, ‘Sarah K’ was not a customer.
However the lawsuit was filed because Yelp published the false libelous defaming speech in words and image on Google, next to our paid advertising.
In 2013 there were 865 similar Federal Trade Commission (FTC) complaints filed against Yelp by business owners nationwide for using false reviews, and phony one star ratings to extort advertising money from business owners.
The court upheld the protection of the false speech.
The ruling in this case leaves businesses with no possible means to remove false speech
published by Yelp that is harming their business and causing loss.
The obsolete 1996 Internet law that protects Yelp and the false speech
is contrary to existing state and federal statutes prohibiting libel extortion and unfair competition, and to international laws in the U.K, Canada and Australia (to name a few) that Yelp operates in.
This is a problem that is only growing larger and this issue is unsettled.
April 2014, FTC complaints against Yelp totaled 2,046
Sept 2016, FTC complaints against Yelp totaled 5,392.
Watch soon to be released documentary ‘Billion Dollar Bully”.
There were more than 10 news stories published natiowide, written by various news papers.
The most comprehensive expressive news story written about the case is –https://consumerist.com/2016/09/13/no-yelps-star-ratings-dont-make-it-liable-for-bad-reviews/#more-10254027
Court photo exhibit documents can be seen at the ‘appeal PDF’ hyperlink, bottom of page.
I wrote and filed the case ‘pro se’ Latin meaning ‘for oneself’, the costs exceeded $5,000.00 and involved more than 650 hours writing and filing documents (all electronically) over a three year period, and studying federal civil law and procedure and filing within deadlines.
( 2004 the federal courts began using electronic document filing ).